Culaj (Migration)

[2023] AATA 1303

Culaj (Migration) [2023] AATA 1303 (10 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Skertjan Culaj

REPRESENTATIVE:  Mrs Sidrah Fahad (MARN: 1575497)

CASE NUMBER:  2203445

HOME AFFAIRS REFERENCE(S):          BCC2020/665357

MEMBER:T. Quinn

DATE OF ORAL DECISION:   10 May2023

DATE OF WRITTEN STATEMENT:         10 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 10 May 2023 at 11:27am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – enrolment in a course of study – courses completed – decision under review affirmed           

LEGISLATION

Education Services for Overseas Students Act 2000, s 10
Migration Act 1958, ss 65, 338, 347, 359
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212; r 1.03

CASES

Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 3 March 2020, the applicant applied for a Student visa (the visa) to undertake study in Australia (‘the application’).[1]

   [1]Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).  At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the former and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

2. On 21 February 2022, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis that the applicant did not satisfy the genuine temporary entrant requirements in relation to student visas.[2]

   [2]See clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which requires that student visa applicants be genuine applicants for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application

3. On 10 March 2022, the applicant applied to this Tribunal for a review of the delegate’s decision.[3]

   [3] Pursuant to sections 338(2) and 347 of the Act.

4. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed since making their application. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information for the purposes of determining the outcome of their application for review. To this end, on 14 March 2023, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The s359(2) letter requests that a questionnaire (‘the questionnaire’) be completed by the applicant.

5. The applicant responded to the s359(2) letter on 28 March 2023, including filing the completed questionnaire, which was within the prescribed timeframe.

6. The applicant appeared before the Tribunal to give evidence and present arguments in a telephone hearing on 10 May 2023.  The applicant was assisted in relation to the review and their representative also attended the telephone hearing. 

7. It is for the applicant to demonstrate that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

8. I have proceeded to a decision having regard to all the information before me, including the material and evidence provided by the applicant on the day of the hearing.

9. In reaching my decision in this case, I have had regard to:

   a.the oral evidence of the applicant given at the hearing;

   b.all written material filed by or on behalf of the applicant both before and after the hearing; and

   c.other relevant documents on the Tribunal and Department files.

   Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the reasons as set out below. The reasons incorporate reference only to that information that I have found to be fundamental or materially significant to the determination of the issues in the case.[4]

   [4]In this regard, please see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020) at [82] and [96].

10. For the following reasons, the decision is affirmed.  I made an oral decision at the conclusion of the hearing.  The following are the reasons for that decision.

    STATUTORY FRAMEWORK

11. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant.

    Enrolment (clause 500.211)

12. Clause 500.211 relevantly requires that, at the time of decision, the student visa application in question be founded on evidence that the applicant is enrolled in a course of study.[5] The applicant does not claim to meet any of the alternative criteria in clause 500.211 of the Regulations.

    [5]Clause 500.211(a) of Schedule 2 to the Regulations.

13. ‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has been registered under the Education Services for Overseas Students Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[6]

    [6]Regulation 1.03 of the Regulations.

14. All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[7]  Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[8] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of Schedule 2 of the Regulations.

    [7]Section 10 of the ESOS Act.

    [8]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. While the determinative issue before the delegate was whether the applicant met the genuine temporary entrant criteria under clause 500.212 of the Regulations, it became clear at the outset of the hearing that the applicant did not meet the enrolment requirements of clause 500.211 of Schedule 2 of the Regulations.

    Significance of Enrolment Criterion

16. Producing evidence of current enrolment is a critical first step towards obtaining a student visa.  Such evidence shows that the applicant has, prior to the Tribunal making its decision, entered into a legally binding contract with a registered course provider.  That contract gives rise to several significant obligations.  First, it obliges the course provider to provide the applicant with a pre-determined course of education or training over a specified period.  Second, it obliges the applicant to pay for the course.  Third, it obliges the applicant to complete the course requirements to receive a testament from the course provider as to what the applicant has achieved by way of formal qualification.  An enrolment therefore represents a present and operating commitment by the applicant to complete a course of study.  It is persuasive evidence of a tangible and immediate need for a student visa.

17. An enrolment continues to be of legal significance once a student visa is issued.  All student visas are subject to a condition that the visa holder remain enrolled in a registered course of study.[9]  That condition operates on a continuing basis every day the visa remains valid.  If a student visa is issued to an applicant who is not enrolled in a course of study, the visa will be breached as soon as it is granted.

    [9]Schedule 5 to the Regulations.

18. The Tribunal must therefore be presented with evidence that shows the applicant is currently enrolled in a registered course of study. Absent such evidence, a student visa cannot sensibly be grated. Indeed, in any case for a student visa, consideration of whether all other primary criteria are met, as contained in clauses 500.211-500.218 of the Regulations, is premised on the enrolment criterion in clause 500.211 first being satisfied. If clause 500.211 is not met, there is no administrative utility in the Tribunal proceeding to consider any further primary criteria.

    THE HEARING

19. In the introduction to hearing, I stated that in an application for review of this type, I must consider certain things:

    a.one is whether you are enrolled in a course of study (cl500.211(a)); and

    b.the other is whether you are a genuine applicant for entry and stay as a student intending genuinely to stay in Australia temporarily (cl 500.212(a)).

20. The Tribunal then asked if the applicant had any questions and the applicant said no.

21. The applicant gave evidence at hearing that he did not have a current confirmation of enrolment.

22. The applicant confirmed that he recalled and had read the questionnaire which the Tribunal requested he complete in March 2023 and which he completed (‘the questionnaire’). The questionnaire makes several requests for information relating to the enrolment condition contained in clause 500.211 of the Regulations. In the section of the questionnaire making these enquiries, the document also states “[n]ot being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker.”

23. When the Tribunal wrote to the Applicant by letter on 20 April 2023 inviting him to the hearing scheduled for 10 May 2023, the Tribunal advised that it was necessary for the applicant to produce a COE or other documents showing that they are currently enrolled in a course of study as defined by Clause 500.211 of Schedule 2 of the Regulations. It was made clear in that letter that proof of enrolment is a requirement for the grant of a student visa. The Tribunal requested such proof be provided 7 days prior to the scheduled hearing. The applicant confirmed at hearing that he had received this document, reads it and completed the response filed 27 April 2023 to this hearing invite.

24. The applicant gave direct evidence to the Tribunal that he is not currently enrolled. I considered and explained that the determinative issue in the applicant’s case had changed as he is not enrolled and, although disappointed, the applicant indicated he understood. I empathise with the applicant, but it is his responsibility to ensure he meets the necessary requirements of the Act and Regulations.

25. Being enrolled is a mandatory requirement and the applicant does not satisfy that mandatory requirement. The applicant gave evidence that he does not hold a current Confirmation of Enrolment which would establish that he meets the essential requirement under clause 500.211(a).

26. The applicant has had an adequate opportunity to obtain such evidence and received correspondence from the Tribunal which made clear the importance of the enrolment criteria. In the circumstances, the question of whether the applicant meets the criteria under clause 500.211 has become determinative for the purposes of the case before me. If the applicant does not meet the criteria under clause 500.211, then there is no utility in proceeding to consider whether the genuine temporary entrant criteria are met under clause 500.212.

27. The applicant does not meet the regulatory requirements for the grant of a student visa because there is no evidence satisfying any of the criteria in clause 500.211 of the Regulations.

    Other Matters    

28. The applicant has provided evidence showing he has completed all courses he initially proposed in his original application.  He has made exceptional progress in his study from the time of his application in 2020 until completion of his Diploma in April 2022.  I commend the applicant in this regard, and it is strong evidence that he may well have satisfied the genuine temporary entrant criteria.  The applicant has been disadvantaged by the delays in his matter being determined by the Department and in coming before this Tribunal and I empathise with him in this regard.

29. The Tribunal undertook a PRISMS search on 10 May 2023 which is consistent with the applicant’s submissions and I have placed no weight against him in relation to that document.

    CONCLUSIONS

30. I am not satisfied that at the time of my decision, the applicant was enrolled in a course of study and accordingly clause 500.211 of the Regulations is not met.

31. The criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.  Accordingly, the decision under review must be affirmed.

    DECISION

32. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    T. Quinn
    Member